Allowed

Sri. Ganesh v. Sri.Appaji Gowda

Karnataka HC14 Feb 2022WP/526/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed under Article 226 challenging an order in execution proceedings. The court held that the Trial Court erred by detaining petitioners in civil prison without considering their objections and without advantageously relying on their filed undertaking regarding possession.

What did the court decide?

The writ petition is allowed, the impugned order is set aside, and the execution petition is disposed of.

Sri. Ganesh Vs Sri.Appaji Gowda — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF FEBRUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.526 OF 2022 (GM-CPC)

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BETWEEN:

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SRI. GANESH S/O KEMPA RANGA AGED ABOUT 53 YEARS

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2 . SUBRAMANYA

S/O KEMPA RANGA

AGED ABOUT 56 YEARS

SMT RADHA

D/O NANJAMMA SINCE DEAD REP BY LEGAL REPRESENTATIVES

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3 . SRI BANNARI

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S/O PUTTASWAMY H/O LATE RADHA

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AGED ABOUT 38 YEARS

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PETITIONERS NOS.1 TO 3 ARE

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RESIDING AT SWEEPERS COLONY SIDDAPPAJI ROAD

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HEGGADA DEVANA KOTE TOWN-571 114.

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...PETITIONERS (By Sri. Y K NARAYANA SHARMA, ADVOCATE, (VC)

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AND:

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SRI.APPAJI GOWDA SINCE DEAD, REPRESENTED BY HIS LEGAL REPRESENTATIVES

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SMT PUTTAMMA W/O LATE APPAJI GOWDA AGED ABOUT 69 YEARS

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2 . SRI SOMASHEKHARA S/O LATE APPAJI GOWDA AGED ABOUT 47 YEARS

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3 . SMT JALAJAKSHI W/O SHANKARALINGEGOWDA AGED ABOUT 57 YEARS

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4 . SRI.CHANDRAPRABHA W/O BALARAJU AGED ABOUT 54 YEARS

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5 . SRI CHANDRU MANI W/O RAMESH AGED ABOUT 52 YEARS

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6 . SMT ANUSUYA W/O SATHISH AGED ABOUT 50 YEARS

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7 . SMT SUMITHRA W/O NAGENDRA AGED ABOUT 48 YEARS

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THE RESPONDENTS NO.1 TO 7 ARE RESIDING AT DOOR NO.1603, HOUSING BOARD COLONY HEGGADA DEVANA KOTE TOWN-571 114.

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8 . SMT RACHAMMA

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D/O VENKATAIAH MAJOR, RESIDING AT SWEEPERS COLONY SIDDAPPAJI ROAD

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HEGGADA DEVANA KOTE TOWN-571 114

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...RESPONDENTS

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(BY SRI.SANGAMESH R.B., ADVOCATE FOR C/R2 AND ALSO for R1 & R3 to R7 (PH)

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VIDE ORDER DTD.14.02.2022, NOTICE TO R8 IS D/W)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.16.11.2021 PASSED IN EX. NO.26/2017 BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC H.D.KOTE AS PER ANNEXURE-K AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioners aggrieved by the order dated 16.11.2021 passed in Execution No.26/2017 by the Court of Senior Civil Judge and JMFC, H.D.Kote has filed this writ petition.

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Brief facts leading rise to filing of this writ

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petition are as under:

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The husband of respondent No.1 and father of respondent Nos.2 to 7 filed a suit in O.S.No.199/1997

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on the file of Civil Judge (Sr.Dn) & J.M.F.C., Hunsur seeking for relief of possession of the suit schedule property and for permanent injunction against the petitioners and respondent No.8. The said suit came to be decreed by the judgment and decree dated 25.11.2009. The deceased plaintiff had filed execution petition in Ex.No.78/2010 and took the possession of the suit schedule property on 06.02.2013 by executing the said decree passed in the aforesaid suit. Subsequently, the original plaintiff died. The respondent Nos.1 to 7 are the legal heirs of deceased original plaintiff filed an execution petition in Execution No.26/2017 against the petitioners and respondent No.8 before the Trial Court seeking arrest of the petitioners and to keep them in a Civil prison alleging that they have violated the judgment and decree passed in the aforesaid suit. It is contended by the respondent Nos.1 to 7 that the petitioners along

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with their representatives and agents removed the boundary stones and attempted to disturb the possession of respondent Nos.1 to 7 and trying to obstruction/interference with the possession over the suit schedule property. The executing Court issued a notice to the petitioners, the petitioners appeared and filed detailed objections contending that the petitioners have already handed over the possession of suit schedule property to original plaintiff. After his demise the respondent Nos.1 to 7 are in possession. It is also further contended that the petitioners are not interfering in a peaceful possession and enjoyment of respondent Nos.1 to 7 over the suit schedule property. The Executing Court after hearing the parties allowed the petition, vide order dated 16.11.2021 and consequently, directed the petitioners and respondent No.8 to be detained in civil prison for a period of 15 days. The petitioners aggrieved by the order passed in

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the aforesaid execution petition has filed this writ petition.

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Heard the learned counsel for the

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petitioners and also the learned counsel for

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respondent Nos.1 to 7.

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Learned counsel for the petitioners submits

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that the petitioners have stated in their statement of objections that the possession was handed over to the original plaintiff through the process of law and further, the petitioners have never interfered in peaceful possession and enjoyment of the suit schedule property. He further submits that the executing Court did not consider the said aspect and proceeded to pass the impugned order. He further submits that the petitioners have filed an undertaking affidavit and contending that respondent Nos.1 to 7 are in peaceful possession and enjoyment of the suit

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schedule property and the petitioners undertake that they will never interfere with the possession of the property by respondent Nos.1 to 7. Hence, on these grounds, he prays to allow the writ petition.

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Per contra, learned counsel for the respondents submits that in view of the undertaking given by the petitioners nothing survives for consideration in this writ petition.

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Heard and perused the records and

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considered the submissions of the learned counsel for the parties.

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It is not in dispute that Sri Appagi Gowda

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has filed a suit for possession and permanent injunction. The said suit came to be decreed against the petitioners and respondent No.8. The petitioners did not comply the decree passed in favour of Sri Appagi Gowda. The said Sri Appaji Gowda has filed

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Execution Petition No.78/2010. In the said execution petition, the Trial Court issued a warrant for delivery of possession and thereafter, the petitioners have surrendered the possession of the suit schedule property in favour deceased - Sri Appaji Gowda. Sri Appaji Gowda died leaving behind respondent Nos.1 to 7 as his legal heirs. After the death of Sri Appaji Gowda, it is alleged by respondent Nos.1 to 7 that the petitioners are interfering with the peaceful possession and enjoyment of the suit schedule property. Though the petitioners have contended in the statement of objections that the petitioners are not interfering with the peaceful possession and enjoyment of the suit schedule property, the trial Court without considering the contentions raised by the petitioners in the objections, proceeded to allow the execution petition. The Trial Court has committed an error in passing the impugned order. Further, the

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petitioners have filed an undertaken before this Court that they have undertaken that they would never interfere with peaceful possession and enjoyment of respondent Nos.1 to 7 over the suit schedule property and they have also admitted the possession of the respondent Nos.1 to 7 over the suit schedule property. The said undertaking is placed on record. In view of the above discussion, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed.

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ii. The impugned order is set aside and consequently, the Execution Petition filed by the respondent Nos.1 to 7 is disposed of.

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Sd/-

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Judge

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Sri. Ganesh v. Sri.Appaji Gowda

Case brief

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Sri. Ganesh v. Sri.Appaji Gowda

Case brief

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